Warrant Needed to Read Texts Surrendered by Provider

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By Lance J. Rogers

Dec. 13 — Police violated a man’s constitutional rights when they read his text messages after subpoenaing the man’s mobile phone records from his service provider, a divided Texas Court of Criminal Appeals ruled Dec. 7 ( Love v. State , 2016 BL 406321, Tex. Crim. App., No. NO.AP-77,024, 12/7/16 ).

The case is significant because it curbs the sweep of the “third-party doctrine” by making it clear that police need a search warrant to compel a service provider to surrender content-based communications.

Analogy to Mailed Envelopes

Albert Leslie Love didn’t give up his reasonable expectation of privacy in the content of the texts just because his provider was entrusted with delivering those messages, Judge Kevin Yeary said in his opinion on behalf of the 6-3 majority.

“Text messages are analogous to regular mail and email communications,” Yeary wrote. The sender has a reasonable expectation that they will only be read by the intended recipient and not by the carrier entrusted to deliver them.

Yeary found persuasive the analysis in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). where the Sixth Circuit held that the government can’t force a provider to turn over the content of e-mails without a warrant any more than agents could “storm the post office and intercept a letter” on the way to its intended recipient.

The seizure of Love’s texts wasn’t saved by the federal good faith exception to the exclusionary rule, Yeary added, because Love also invoked the statutory exclusionary rule in Tex Code Crim. Pro. Art. 38.23(a), which doesn’t trigger a good faith exception unless there was a warrant involved.

Judges Cheryl Johnson, Michael Keasler, Elsa R. Alcala, Robert “Bert” C. Richardson and David Newell concurred.

Presiding Judge Sharon Keller argued in dissent that Love hadn’t sufficiently preserved the constitutional objection. She was joined by Judges Lawrence E. Meyers and Barbara Parker Hervey.

The McLennan County District Attorney’s Office argued for the state. Ariel Payan, Austin, Tex., argued for Love.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

The majority opinion is available at http://src.bna.com/kCY.The dissent is available at http://src.bna.com/kCZ.

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